BILL ANALYSIS Ó
SB 1005
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Date of Hearing: June 8, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1005 (Jackson) - As Amended June 6, 2016
SENATE VOTE: 35-2
SUBJECT: Marriage
KEY ISSUE: should california statutes be updated to replace
REFERENCES to "husband" and "wife" with the gender-neutral term
"spouse"?
SYNOPSIS
This technical, non-substantive bill replaces references to
"husband" or "wife" with references to "spouse" throughout the
codes. This bill is a follow-up to 2014's SB 1306 (Leno), Chap.
82, Stats. 2014, which clarified that the statutory language in
the Family Code enacted by Proposition 22 of 2000 (which
provides that "only marriage between a man and a woman is valid
or recognized in California") no longer has, after the
California Supreme Court's decision in In re Marriage Cases
(2008) 43 Cal.4th 757, any legal effect, and therefore defined
marriage in a gender-neutral manner. That bill represented the
culmination of a decades-long effort to allow same-sex couples
to marry in California.
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In 1999, California created its first domestic partnership
statute for same-sex couples (AB 26 (Migden), Chap. 588, Stats.
1999), following similar actions by local jurisdictions
beginning in the 1980's. The drive for marriage equality was
advanced substantially in 2005 when legislation to permit
same-sex couples to marry was introduced. AB 849 (Leno) became
the first marriage equality bill in the nation to pass a state
legislature, but it was vetoed by then-Governor Schwarzenegger.
Three years later, in 2008, the California Supreme Court, in its
landmark In re Marriage Cases ruling, struck down as
unconstitutional statutes that limited marriage to a man and a
woman, and same sex-couple were able to marry. That lasted
until November of 2008, when Proposition 8, which defined
marriage in the state constitution as the union of a man and a
woman, was approved by the voters. Proposition 8 was
subsequently found unconstitutional by a federal district court
and that decision remained the law in California after the U.S.
Supreme Court found that appellants lacked standing to appeal.
(Perry v. Schwarzenegger (2010) 740 F. Supp. 2d 921 (N.D. Cal.);
Hollingsworth v. Perry (2013) 133 S. Ct. 2652.) Just last year,
the U.S. Supreme Court, in the landmark Obergefell v. Hodges
case, determined that preventing same-sex couples from
exercising their fundamental right to marry violated the due
process and equal protection clauses of the 14th Amendment to
the U.S. Constitution. (Obergefell v. Hodges (2015) 135 S. Ct.
2584.) Thus, same-sex couples may now marry anywhere in the
United States.
This bill is sponsored by Equality California and supported by,
among others, the American Civil Liberties Union of California
and National Center for Lesbian Rights, who state that it is
important for statutes to accurately reflect the law to avoid
confusion for the courts and unrepresented litigants. It is
opposed by the California Catholic Conference, who argues by
replacing "the meaningful terms 'husband' and 'wife' with the
generic word 'spouse,' [the bill] depletes the critical role
gender plays in the family structure" and could infringe on
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individuals' "religious liberty rights."
SUMMARY: Replaces "husband" and "wife" with "spouse."
Specifically, this bill:
1)Replaces "husband" and "wife" with "spouse."
2)Clarifies that "spouse" includes registered domestic partners
throughout the codes.
EXISTING LAW:
1)Provides that marriage is a personal relation arising out of a
civil contract between two persons. (Family Code Section 300.
Unless stated otherwise, all further statutory provisions are
to that code.)
2)Provides that registered domestic partners have the same
rights, protections, and benefits and are subject to the same
responsibilities, obligations, and duties under law, whether
they derive from statutes, administrative regulations, court
rules, government policies, common law, or any other
provisions or sources of law, as are granted to and imposed
upon spouses. Also applies to former domestic partners and
surviving domestic partners. (Section 297.5.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This bill continues a decades-long effort to allow
same-sex couples to marry in California. While California and
the entire United States now recognize the rights of same-sex
couples to marry, the codes have not fully caught up to the law,
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and this bill seeks to move that process forward by replacing
the terms "husband" and "wife" with the gender neutral term
"spouse" throughout the codes. In support of the bill, the
author writes:
There are many provisions in statutory law, particularly in
California's Probate Code, with important applications for
married couples and the individual rights of a spouse.
Language that does not accurately reflect marriage equality
can create confusion for courts, litigants, and applicants
for state programs about what rights are available to
same-sex spouses, particularly for self-represented
individuals.
The History of Marriage Equality in California: The origins of
this bill - and the civil rights struggle it represents - go
back decades. Beginning in the mid-1980's, local jurisdictions
began to recognize same-sex couples by establishing a legal
status called "domestic partnership," which gave same-sex
couples not only limited protections for themselves and their
children, but also, for the first time, government recognition
as family units. By 2000, 18 California local governments had
established domestic partnership registries. California took
notice of this emerging movement to recognize the rights of
same-sex couples. In 1999, the Legislature enacted AB 26
(Migden), Chap. 588, Stats. 1999, to create the state's first
domestic partnership statute. The most comprehensive set of
rights and responsibilities for registered domestic partners was
enacted in 2003 by AB 205 (Goldberg), Chap. 421, which became
fully operative on January 1, 2005 and still applies today.
In 2000, California voters passed Proposition 22 to prohibit
California from recognizing same-sex marriages. The measure
passed with 61 percent of the vote and became codified as
Section 308.5 of the Family Code.
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In February 2004, the City and County of San Francisco began
issuing marriage licenses to same-sex couples. However, after
4,037 same-sex couples had married, the California Supreme Court
ordered San Francisco to stop issuing marriage licenses to
same-sex couples and invalidated the marriages that had already
occurred. (Lockyer v. City and County of San Francicso (2004)
33 Cal.4th 1055.)
Senator Leno's first legislative attempt to permit same-sex
couples to marry was AB 19 in 2005, which passed this Committee
that year but failed passage on the Assembly Floor. Senator
Leno then revived the bill later in that year as AB 849, which
became the first such bill in the nation to be passed by both
houses of a legislature. However, then-Governor Schwarzenegger
vetoed the bill. Senator Leno nevertheless reintroduced the
measure in 2007 as AB 43, but then-Governor Schwarzenegger once
again vetoed the bill, stating it was up to the Supreme Court to
decide if the state's ban on same-sex marriage was
constitutional, which happened the very next year.
On May 15, 2008, the California Supreme Court, in a 4-3
decision, struck down as unconstitutional the California
statutes limiting marriage to a man and a woman. The majority
opinion concluded that "the California Constitution properly
must be interpreted to guarantee this basic civil right to all
Californians, whether gay or heterosexual, and to same-sex
couples as well as to opposite-sex couples." (In re Marriage
Cases (2008) 43 Cal.4th 757, 782 (footnote omitted).) The Court
found that "[a]lthough our state Constitution does not contain
any explicit reference to a 'right to marry,' past California
cases establish beyond question that the right to marry is a
fundamental right whose protection is guaranteed to all persons
by the California Constitution." (Id. at 809.) The core
substantive rights embodied in the right to marry "include, most
fundamentally, the opportunity of an individual to establish -
with the person with whom the individual has chosen to share his
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or her life - an officially recognized and protected family
possessing mutual rights and responsibilities and entitled to
the same respect and dignity accorded a union traditionally
designated as marriage." (Id. at 781.) Accordingly, the Court
concluded that "in light of the fundamental nature of the
substantive rights embodied in the right to marry - and their
central importance to an individual's opportunity to live a
happy, meaningful, and satisfying life as a full member of
society - the California Constitution properly must be
interpreted to guarantee this basic civil right to all
individuals and couples, without regard to their sexual
orientation." (Id. at 820, emphasis added.) Approximately
18,000 same-sex couples married in California after the
effective date of the In re Marriage Cases decision.
On November 4, 2008, Proposition 8, which added to the
California Constitution a provision stating that in California
marriage could only be between one man and one woman, narrowly
passed on a vote of 52-48 percent and same-sex marriages were
once again prohibited in California. Immediately after the
passage of Proposition 8, its opponents filed a petition
directly with the California Supreme Court seeking to invalidate
the measure on the grounds that it was not permissibly enacted.
The Supreme Court, in Strauss v. Horton (2009) 46 Cal.4th 364,
upheld Proposition 8 in a 6-1 decision, but held, unanimously,
that the same-sex marriages performed in California before the
passage of Proposition 8 were valid. While upholding
Proposition 8, the Court reiterated its key holding in In re
Marriage Cases, namely that in all respects, other than the word
marriage, "same-sex couples retain the same substantive
protections embodied in the state constitutional rights of
privacy and due process as those accorded to opposite-sex
couples and the same broad protections under the state equal
protection clause that are set forth in the majority opinion in
the In re Marriage Cases, including the general principle that
sexual orientation constitutes a suspect classification and that
statutes according differential treatment on the basis of sexual
orientation are constitutionally permissible only if they
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satisfy the strict scrutiny standard of review." (Id. at 412.)
In 2009, opponents of Proposition 8 filed an action in federal
court in the Northern District of California challenging
Proposition 8 as violating both the due process clause and equal
protection clause of the 14th Amendment to the federal
constitution and seeking injunctive relief enjoining application
of the proposition. After a lengthy trial, the district court
concluded that Proposition 8 was unconstitutional, violating
both the federal due process and the equal protection clauses.
(Perry v. Schwarzenegger (2010) 704 F. Supp. 2d 921, 1003 (N.D.
Cal.).) The Ninth Circuit agreed on narrower grounds, ruling
that Proposition 8 violated the equal protection clause by
targeting a minority group and withdrawing a right that the
group already possessed (the right to marriage under the In re
Marriage Cases) without a legitimate reason for doing so.
(Perry v. Brown (9th Cir. 2012) 671 F.3d 1052.) The United
States Supreme Court, on a 5-4 decision, dismissed the appeal
for lack of standing. The Supreme Court found that the
proponents of the initiative lacked standing to appeal.
(Hollingsworth v. Perry (2013) 133 S. Ct. 2652.) As a result,
the district court decision became the law of California.
As a result, on June 28, 2013, California began allowing
same-sex couples to marry and began recognizing marriages
between same sex couples from other states. Two years ago, the
Legislature, conformed existing statutes to superseding state
and federal case law, specifically provided that marriage is the
gender-neutral union of two individuals in SB 1306 (Leno), Chap.
82, Stats. 2014.
Finally, the U.S. Supreme Court, in the landmark Obergefell v.
Hodges case, determined that preventing same-sex couples from
exercising their fundamental right to marry violated the due
process and equal protection clauses of the 14th Amendment.
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(Obergefell v. Hodges (2015) 135 S. Ct. 2584.) Thus, same-sex
couples today may marry across the United States.
This Bill Seeks to Update the Codes to Reflect Current Law: For
unrepresented individuals, understanding the law and complex
legal processes is often very difficult and can be nearly
impossible when statutes do not reflect the actual law.
Updating the statutes will help ensure that someone reading the
California codes will have an accurate understanding of the law.
California's courts have long interpreted the code to apply
neutrally regarding gender in an effort to accommodate the
evolution of the nuclear family. In order to best protect
parties and their children, courts recognize that in many
families traditional gender-stereotypes cease to exist: more
mothers are breadwinners, more fathers are primary caretakers,
and many same-sex couples are raising children. To that end, in
2013 the Legislature updated statutory terms within the Uniform
Parentage Act to conform with case law and other statutory
provisions, including changing "presumed father" to "presumed
parent," and replacing "father" and "mother" with "parent."
(See AB 1403 (Committee on Judiciary), Chap. 510, Stats. 2013.)
In addition, the Legislature enacted SB 1306 (Leno), Chap. 82,
Stats. 2014, which deleted references to "husband" or "wife" in
the Family Code and instead referred to a "spouse." Similarly,
this bill would update the remaining codes to accurately reflect
California law.
The American Civil Liberties Union of California, in support,
further notes: "Language [in the codes] that does not
accurately reflect the law can create confusion for courts,
litigants, and applicants for state programs about what rights
are available to same-sex spouses, particularly self-represented
individuals."
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Domestic Partners are Included Under "Spouses." While this bill
only replaces "husband" and "wife" with the word "spouse,"
spouse also includes domestic partners. California's domestic
partnership laws provide that registered domestic partners have
the "same rights, protections, and benefits, and shall be
subject to the same responsibilities, obligations, and duties
under law, whether they derive from statutes, administrative
regulations, court rules, government policies, common law, or
any other provisions or sources of law, as are granted to and
imposed upon spouses." (Section 297.5.) Similarly, former
registered domestic partners and surviving registered domestic
partners have the same rights as former spouses and surviving
spouses. (Id.) Thus, whenever the term "spouse" is used in the
codes it also includes registered domestic partners.
To make that more clear to non-lawyers, this bill adds
clarifying definitional language to each code that includes the
term "spouse" to refer to Section 297.5 and make clear that
"spouse" includes a registered domestic partner.
ARGUMENTS IN SUPPORT: In support of this bill, Attorney General
Kamala Harris writes that "much of statute continues to reflect
California's unfortunate history of discrimination. Gendered
references to "husband" and "wife" throughout state law do not
adequately reflect the reality of modern marriage rights, and
these references perpetuate a painful legacy as California
continues to advance in its protection of LGBT liberties. By
replacing outdated language in the codes with gender neutral
nomenclature, Senate Bill 1005 both corrects legal inaccuracies
and aids significantly to the continued restoration of dignity
for same-sex couples in the state."
ARGUMENTS IN OPPOSITION: In opposition to the bill, the
California Catholic Conference writes:
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[A]s it is was historically written into our state
constitution, the words "husband" and "wife" are not only
adequate, but necessarily stated, in order to convey and
include the requirement for both genders to be present in law.
Similarly, our Church not only recognizes, but upholds, what
has been reality for thousands of years: that marriage unites
a man and woman in a unique relationship that provides an
ideal environment for childrearing. That definition
recognizes a child's innate right to know and be nurtured by
her/his parents and the fundamental importance of that
relationship to the continued stability and flourishing of
society. Replacing the meaningful terms "husband" and "wife"
with the generic word "spouse," depletes the critical role
gender plays in the family structure.
The Catholic Church, along with other faith traditions,
teaches that the nature of marriage and the family cannot be
redefined by society, as God is the author of marriage and its
corresponding gift of creating human life. The legal
recognition of marriage is not only about personal commitment
but also about the social commitment that husband and wife
make to the well-being of their children. It is for this
reason that it is important for government to give unique
status to marriage between one man and one woman both in law
and in public policy.
Moreover, by making such unneeded, amendments to the laws of
California, unintended consequences are undoubtedly likely to
arise. Not the least of these unintended consequences could
be the infringement of conscience and religious liberty
rights. People of good faith differ on this issue often for
reasons of religious conviction. Coercion imposed by
legislative action of this nature does not resolve the
disagreement. It can make our culture more confrontational,
more contentious, and less civil.
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REGISTERED SUPPORT / OPPOSITION:
Support
Equality California (sponsor)
American Civil Liberties Union of California
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
Attorney General Kamala Harris
California Teachers Association
National Association of Social Workers, California Chapter
National Center for Lesbian Rights
Secular Coalition of California
Opposition
California Catholic Conference
Analysis Prepared by:Leora Gershenzon / JUD. / (916)
319-2334
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